‘Hard to Prove Intent’ of Former Special Counsel Jack Smith: Senior Counsel

Joining us now to discuss is Gerard Felitti, Senior Counsel at the Lawfare Project and Political Strategist. So Gerard, thank you for joining us today. And I just want your comments on what Vice President J.D. Vance said. How much influence do local and state leaders have in terms of things going more smoothly and without chaos, for example, giving intelligence when ICE officers are trying to arrest what J.D. Vance said, sex offenders, and they wouldn't give them the address? I think state and local officials have tremendous power to be heard by people who know them, the people who interact with them on a routine basis. And they have, and probably they alone have the power to deescalate a lot of the tension that we're seeing by calling for calm and restraint and asking people not to actively interfere with the law enforcement operations. People can still protest, but they shouldn't be encouraged to participate in these types of active demonstrations, actively interfering with law enforcement that has even caused the death of Rene Good. So I think that these local officials have a lot of responsibility here. And if anything, they shouldn't be directing people to confrontations, they should be deescalating the situation. Okay, now for some comments on our previous live stream of Jack Smith testifying at that hearing. So I want you to just give us the facts here of what Jack Smith did. His actions, the two cases, one that alleges Trump tried to overturn the 2020 election and mishandling of the classified documents. Just give us the facts here and we can let our viewers decide whether his actions were just. Well, what we saw today was a public version of the deposition that he already gave last month to Congress, to the Judiciary Committee. He laid out a case in which he thought that there was probable cause in order to start this investigation. And in the course of this investigation, based in part on testimony and witness statements, even from Republicans, that there was enough evidence to convince a jury beyond a reasonable doubt that Donald Trump had committed a crime, that he had willful blindness to the fact that he lost the election. And that as a result of that, January 6th happened, the attempts to overthrow the election happened in his opinion. And what we saw from the Republican side from questioning are questions whether he was properly authorized to conduct this investigation in the first place, as Judge Cannon concluded in Florida in federal court, and whether this investigation was actually biased and motivated by politics and not by the actual law. So really, it's hard. Well, I think what's been pointed out, it's very hard to prove intent the type that Jack Smith wanted to bring to court. And that does raise questions on the comprehensiveness of the investigation. Okay, what about Smith's subpoenaing phone records of Republican members of Congress? Smith said he would have gotten Democrats' records if they were needed. What are your thoughts on that? Well, I think he made a point that is very valid from a legal perspective. He was looking for records that were relevant to his investigation, and those records were purportedly held by Republicans, they're by phone records and logs from phones that belong to people who communicated with Donald Trump. And it was not Democrats who were communicating with President Trump at that time. That being said, there are problems and potential improprieties when you are looking to subpoena or to get phone records of government because you do have that deliberations clause, you do have those constitutional protections for members of Congress to engage in government without being investigated by the Justice Department or by anyone else. So that is a tension within the law that has yet to be resolved. Okay, what about the timing of these cases? Smith signaled that he would have brought the charges even if Trump was a Democrat, but it was the timing that a lot of conversation are being had about the legitimacy. But what are your thoughts? Well, I think the timing was very interesting and he proceeded with his investigation fairly quickly. Ultimately, the fact that this was convened so close to the election and that charges were brought with a trial date pending in January of 2024 as the election was approaching and Donald Trump was the most likely Republican candidate, the timing of all of this was problematic. And I think some of the more, the question we heard at the end about asking for a trial date five or six months after the indictment, which basically would mean that defense lawyers would have to read 7,000 pages a minute in order to fully comprehend all the evidence that was collected, was just not realistic. So that does make it look to some that Jack Smith was rushing this to get this before a jury, to get this before the court of public opinion before the election and not taking time to allow the defense to work their case. What is your analysis on the constitutionality of the appointment of Jack Smith? We heard some Republicans say that he wasn't appointed by Congress. Well, I think procedure matters and the way that he executes his office, whether he was appointed properly or not, is a very important thing. And as Judge Cannon has already ruled in federal court in Florida, there was the issue that under the law that he was appointed special counsel, normally that's a position that's confirmed by the Senate and he didn't have that Senate confirmation. So I think that that was an important decision by Judge Cannon that we heard more about today. And in fairness to Jack Smith, he may have been operating under the assumption that he was properly appointed, but there do seem to be very legitimate questions about whether the proper procedure was followed. And when we have a prosecution or a potential prosecution of a former president, procedure certainly matters. Okay, can you also talk to us about whether Smith's testimony today could impact the ongoing Hatch Act probe opened by the office of special counsel last summer? I think it could certainly impact the investigation. I don't see the investigation going away. I think that they will want to see more documents, more evidence and conduct that investigation more thoroughly. I don't think that his testimony today puts to rest any of those questions, but ultimately this is all about the evidence and following what conversations were had and who those conversations were had with. And to the extent that the special counsel's office or Jack Smith himself had discussions with elected officials that were beneficial for their campaigns or for their political positioning, that is deeply problematic. Okay, just finally, Gerard, if you could just list for us maybe a couple of outcomes that you see could play out for Smith, based on everything that's happened so far today's hearing and anything else. Well, I don't think that there is much that can happen to Smith or for that matter, to President Trump. The cases against him are, for all intents and purposes, dead and buried. Even though they were dismissed without prejudice, the statute of limitations will run by the time he is out of office. So those two prosecutions are effectively gone. As for Jack Smith, he does believe that he operated in accordance with the law and in accordance with justice department procedures. If Congress concludes otherwise, there's little they can do other than perhaps issue condemnations of this proceeding and try to formulate new rules, new processes, or a new law to hold the special counsel more accountable in this type of sensitive investigation. All right, Gerard, thank you for joining us today. Pleasure, thank you.